President Barack Obama desecrated the Constitution that he and I
swore to defend when he signed the National Defense Authorization Act of
2012, which includes language violating the Bill of Rights and other
constitutionally protected liberties.

The NDAA affirms that the president has the authority to use the
Armed Forces to detain any person "who was part of or substantially
supported al-Qaeda, the Taliban, or associated forces that are engaged
in hostilities against the United States or its coalition partners."

Under the law, the president also may lock up anyone who commits a
"belligerent act" against the U.S. or its coalition allies "without
trial, until the end of the hostilities." The law embraces the notion
that the U.S. military can be used even domestically to arrest an
American citizen or anyone else who falls under such suspicion -- and it
is "suspicion" because a trial can be avoided indefinitely.

Yes, I know that the Obama administration's allies got some wording
put in to say that "nothing in this section is intended to limit or
expand the authority of the President or the scope of the [2001]
Authorization for Use of Military Force," nor shall the NDAA "be
construed to affect existing law or authorities relating to the
detention of United States citizens, lawful resident aliens of the
United States, or any other persons who are captured or arrested in the
United States."

And there were some waivers stuck in to give the president discretion
over whether to send someone into the gulag of the Military Commissions
system possibly for the rest of a detainee's life, given the indefinite
nature of what was formerly called the "war on terror" and what the
Pentagon has dubbed the Long War.

It's true as well that after signing the NDAA on New Year's Eve,
President Obama engaged in some hand-wringing. He expressed "serious
reservations" about some of the law's provisions and declared, "I want
to clarify that my Administration will not authorize the indefinite
military detention without trial of American citizens." He added that he
would interpret the law "in a manner that ensures that any detention it
authorizes complies with the Constitution, the laws of war, and all
other applicable law."

But those who hoped that Barack Obama, the onetime constitutional law
professor, would begin rolling back the aggressive assault on civil
liberties that President George W. Bush began after the 9/11 attacks
must be sorely disappointed.

Those existing laws -- including the original post-9/11
use-of-military-force authorization and the Military Commissions Act
passed in 2006 and modified in 2009 -- opened the door for presidents to
declare anyone of their choice, American citizen or non-citizen alike,
an "enemy combatant" and to subject the person to military prison or
even assassination.

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Just think of U.S. citizens Jose Padilla (who was tossed into the
Navy Brig in Charleston, South Carolina, for years) and Anwar al-Awlaki
(who was murdered in a drone attack in Yemen in 2011). So, it's not
especially reassuring that President Obama insists that the new law
doesn't dramatically worsen the decade-long erosion of constitutional
rights.

Sweeping Provisions

The American Civil Liberties Union also disputed Obama's claim that
the NDAA was essentially business as usual. "The statute contains a
sweeping worldwide indefinite detention provision," the ACLU said,
without "temporal or geographic limitations, and can be used by this and
future presidents to militarily detain people captured far from any
battlefield."

In other words, the ACLU is noting that since the United States
relies on the principle of "laws, not men," the assurance of any
individual president that he won't exploit an abusive legal power
doesn't mean that the next president won't. The right thing to do in
such a case is to veto legislation that contains that kind of
unconstitutional provision, not simply sign it, promise not to use it,
and express "serious reservations."

Sure, if President Obama had exercised his veto, he would have been
criticized in some corners as "soft on terror" and he would have
undercut his political message about the need for bipartisanship amid
the dysfunction of Washington. But compromising on the Constitution
isn't like adding a road project to secure some congressman's vote.

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Fifty years ago, when I was commissioned a 2nd lieutenant
in the U.S. Army, I took an oath to support and defend the Constitution
of the United States against all enemies foreign and domestic. I knew
that the oath carried no expiration date. Back then, I could not
conceive of the possibility that one day this would pose a problem. I
felt that we Americans were pretty much all on the same team. But how
will I honor my oath in today's circumstances?

The winter is getting cold and I am getting old. Still. Do I have
enough integrity; do I have enough genuine love for my country to be a
"winter soldier" and do what I can to stop this steady encroachment on
liberties that many other soldiers fought so valiantly to establish and
protect?

It is a challenge not wholly different from the cold reality faced
235 winters ago by George Washington's army. The British had forced the
army's retreat from New York just months after the signing of the
Declaration of Independence on July 4, 1776. Not only was the American
cause at low ebb, but Gen. Washington faced the annual crisis caused by
the expiration of the Continental Army's period of enlistment. Some kind
of success was desperately needed.

Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in inner-city Washington. He was an Army infantry/intelligence officer and then a CIA analyst for 27 years, and is now on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS). His (more...)